The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1887-04-28

In the former, reference is made to
"bequests," "deeds" and mortgages, !"
and the same Statute that gives her the
power to bequeath, gives her the power
to ALLEVIATE, and also to execute mortgages.
Is it possible, therefore, if a married
woman executes mortgage deed de-
scribing her separate property, that the
execution thereof is not in reference to
that separate property3 In the con,
struction put upon Section 2O97, General
Statutes, the Court holds that it must
appear by the contract, or dliunde, that 1t
was for the benefit of the separate property,
but the Act does not say 80. 1t merely
says, ito contract and be contracted with
as to her separate property" mot its ben
6t), and has not the Court by construction
put language into the section that the
Legislature did not put in, nor intended
I! should be put into it. The construction as
made by the Court would make the sec,
ton read, "to contract and be contracted
with as to her seperate property and tor
/ the benefit of her separate property" AS
, have understood, it is not the province
of Courts to make either contracts or
laws, but to construe them, but if the
Court assumes to interpolate words in a
Statute to make its meaning different
from the ordinary meaning and under
standing of the people, then what is the
use of Legislative bodies? Ore of the
rules of the Constitution laid down by
the most eminent constitutional lawyer
perhaps of America.is, "that the trainers
of the Constitution and the people who
adopted it must be understood to have
employed words in their natural sense,
and to have understood what they meant. "
-Ch. J. Marshall, in Gibbons vs.. Ogden,
9 Wheat, 1888. "When words are used
to which the Legislature has given a
plain and definite import in the Act, it
would be dangerous to put upon them a
construction which would amount to
holding that the Legislature did not
mean what it has expressed" | appre.
hend, is sound rule sustained and quoted
by high authority. Now, refer to section
2036, General Statutes, quoted above, and
see whether the Legislature have used
the words "begueath," "devise," icon.
vey," "deeds," mortgages" &C., with a
plain, natural, definite import and then
interject the words, "as to her separate
property for the benefit of her separate
property" and see if these fundamental
rules of construction would not be viola.
ted. Then in Section 2O97: "As to her
separate property" Has not the Legis.
lature in plain, natural, definite unequivo.
cal import referred to the thing, Sepa.
rate property, whereas the Court has
construed the thing away, and makes it
the benefit Of the thing.
Itseems to me that the Court has not
only ignored these rules of construction,
but, to use the common parlance, have
gone square back on the former decisions.
It follows, therefore, that either the for.
mer decisions holding that married
woman. on Constitutional grounds, could
execute valid mortgage are wrong, or
the last decision. Aultman, Taylor & Go.
vs. Rush, contra, is wrong. The last de-
cision, We are glad to note, is rendered by
divided Court, MCGOWAN, A. j., dis.
senting.
The Court having heretofore unani
mously declared, both under the Consti-
tation and the Act of 1870, under the
SECTION referring to deeds and mortgages,
&C., lnow SECTION 2OS6, General Statutes,
that married woman could pledge her
separate property for her husbands
debt, regardless of benefits, the last de-
cision, as it appears to me, muat neces.
sarily impair the obligation of contracts
entered into in the meantime. The prin.
ciple has been settled too long and too
often, to require reference to the. author.
tiles: A mortgage of resl estate is a
pledge. The mortgage occupies the
favored position in law and equity of a
bona fde purchaser for valuable consider.
alton. Under the Constitution married
woman may pledge her separate property
for her husbands debts. Witsell vs..
Charleston, Pelzer, Rodgers & Co. vs..
Campbell, Witte Bros. vs.. Clark, where
the Court declares the whole subject
under the present Constitution discussed
as to render further discussion unnecces.
sary and the matter conclusively settled
by Witsell ys. Charleston, and in each
one of these cases the Constitution was
under review, and in two of them Section
2, Act 1870, now Section 2O36, General
Statutes, which has never received any
amendment at the hands of the Legisla.
ture. Would any lawyer hesitate for a
moment to consider the question whether
the obligation of a contract would be
impaired, after these decisions, had the
Legislature passed an Act repeating Sec.
tion 2, Acts 1870, (Section 2036 General
Statutes) (? If, therefore, the Legisla-
ture is inhibited from passing an Act
impairing the obligation of a contract,
has Court any authority to do so by
construction?
In the case of the Ohio Trust Co. vs..
Debalt, 16 How, page 432, Oh. j. Taney
delivering the opinion, says: "It was
upon this ground that tho Court sus.
tained contracts made in good faith in
the State OF Mississippi under an existing
construction of its Constitution, although
subsequent and contrary construction
given by the Courts of the State would
have made such contracts illegal and
void. The point arose in the case of
Rowan ct. al. Va. Rumels, How. 1884,;
and the Court then said that it would
always feel itself bound to respect the
decisions of the State Courts, and from
time to time as they we're made, would
regard them as conclusive in all cases
upon the construction of their own Con-
stitution and laws; but that it ought not
to give them retroactive effect and allow
them to render invalid contracts entered
into with citizens of other States which,
in the judgment of this Court, we're law.
full at the time they we're made. 1t is
true the language of the Court is con-
fined to contracts with citizens of other
States, because it was case of that de-
scription which was then before it. But
the principle applies with equal force to
all contracts which come within its juris-
diction." In Gelpeck vs. City Dubuque,
l Wal, l76: Although it is the practice
of this Court to follow the latest settled
adjudications of the State Courts giving
constructions to the lsws and constitu.
tions of their own States, it will not
necessarily follow decisions which may
prove but oscillations in the course Of
such judicial settlement. Nor will it
follow any adjudication to such an extent
as to make sacrifice of truth, justice
and law" and on page 2O6: "The
sound and true rule is that if the con-
tract when made was valid by the laws
of the State as then expounded by all
departments Of government and admin.
istered in courts of justice, its validity